The European Seed Association (ESA) regrets the decisions of the European Patent Office’s Enlarged Board of Appeal (EBoA) on the so-called ‘Broccoli’ case (as well as the similar ‘Tomato’ case) which was rendered on 25 March 2015. With its decision, the EBoA clarified that patents may be granted for plants that are obtained by essentially biological processes such as classical crossing and selection. This possibility had been contested in view of the specific exclusion of plant varieties from patentability as well as the ‘open source’ approach of the breeders’ exemption which are both enshrined in EU law.

“We are very disappointed by the rulings. It seems that the Enlarged Board of Appeal chose a very narrow and legalistic interpretation of the issue in question and consequently decided in favour of patentability of plants rather than restricting it.”, Garlich v. Essen, Secretary General of ESA summarises the European Seed Association’s view. ESA had actively engaged in the cases which it saw as potential landmark decisions on how the two systems of intellectual property protection could co -exist in the future. In its respective Position on Intellectual Property Protection for Plant-Related Inventions as well as its specific submissions to the cases, ESA clearly supported a more restrictive interpretation of patentability in order to safeguard access to biological material.

“The breeders’ exemption is the cornerstone of a system that successfully balances the protection of individual intellectual property with the common interest of society to introduce innovation broadly and quickly by allowing free access for further research and breeding. This decision has the potential to not only restrict this free access to quite a number of products, but also to generally discourage breeding efforts in areas covered by such patents in the future.” von Essen predicts.

In its justification, the EBoA specifically underlines that it did not take political considerations or societal, ethical or technological views into account but merely interpreted the current law. Von Essen therefore is convinced that the debate will continue: “Of course we will now have to evaluate what political and regulatory options remain. The ESA Position is clear. We want an effective breeders’ exemption and that means an effective exclusion from patentability of not only plant varieties and essentially biological processes but also of plants obtained by such processes. While we support the patentability of true biotechnological inventions, this ruling is shifting the boundary between the two systems in favour of patents. As ESA, we therefore now will have to work for suitable initiatives and measures to shift that boundary back.”